Those immigration lawyers who handle J-1 home residency cases know they can be very difficult. These are cases for people who come on J-1 exchange visitor visas and who become subject to a requirement to return to their home country for two years before they can switch to permanent residency status in the US (they are also barred from changing non-immigrant status in the US or applying for an H-1B or L visa). And one of the toughest types of J-1 waiver cases is that based on hardship.

Recently, Siskind, Susser, Haas and Devine successfully handled a hardship case that illustrates just how difficult these cases can be. The matter involved an Indian physician subject to the home residency requirement. Physicians are very limited in their J-1 waiver options - normally only being able to choose from getting the backing of a US government agency (such as by working in a health professional shortage area) or by seeking a hardship waiver. The waiver applicant has a permanent resident husband who is also a doctor and who is in his residency program for another two years. And the couple had two US-born children - one age four and the other age seven.

The case argued hardship from several perspectives including

scenario #1 - hardship if the mother returned home and left the children with the father in the US

scenario #2 - hardship if the whole family returned to India

scenario #3 - hardship if the mother returned to India with the children and left the father in the US.

Evidence was presented showing that serious hardship would result in any of these cases.

With respect to scenario #1, the case was made that the mother would be unlikely to find a job in India and that the father would have to support two households on a single medical resident's income (about $25,000) per year. More importantly, the children could suffer irreversible psychological damage if they were separated from their mother for two years. Additional evidence was presented showing that the children would basically become latchkey kids with no parental supervision since the father works about 60 hours per week and could not afford a nanny.

With respect to scenario #2, the financial issues would be even worse. Neither parent would be likely to find a job. Furthermore, if the father left his position in his residency program, he basically could be throwing his career away since he would find it very difficult to be readmitted to a residency program. Furthermore, substantial documentation was presented showing several hardships the children would suffer in India. First, the children only speak English and it would be necessary to travel two to three hours each day to the nearest American school. Plus, the tuition at the school would amount to nearly $10,000 per year, well beyond the means of the family. The local school submitted documentation stating that they do not have the means to accommodate children who don't speak the language and that the children would basically have to fend for themselves. Finally, evidence was presented showing that one of the children had a serious asthma problem and that the location of the children's family in India is in an area with a serious air pollution problem.

With respect to scenario #3, the hardships to the children of returning to India would be the same. Furthermore, the problems of financially supporting two households remained and the children would face the emotional hardship of being separated from their father.

The case was initially submitted to the INS. The INS agreed that hardship was shown and sent the case off to the USIA which must concur before the waiver can be approved. That's where the problems in the case started.

The USIA recommended against approving the waiver stating that the decision was made for "policy reasons." No further reasons were enunciated. This is the standard response given to most hardship waiver denials. After calling the USIA waiver review officer and presenting my objections, I was told that the case was passed around to several officers and they all agreed that the denial was proper. We tried to get some specifics regarding why they felt the case did not merit a waiver, but this did not get me anywhere. Theoretically, the case should have been dead at that point. There is no appeals procedure and the INS would basically have no choice but to then deny the application. The only option would be to resubmit the case, but without new arguments or new evidence, the chances of getting the matter overturned would be negligible.

The next place we went was our local Congressman. The Congressman's office was particularly helpful and took the step of contacting Les Gin, the General Counsel for the USIA asking that the agency reconsider the matter. Rather than reversing the decision, the USIA took the unusual step of reversing the denial and, instead, sent the matter up to the USIA Waiver Review Board for their decision. This Board normally takes close call cases that have yet to be decided, not cases already denied.

We obviously were elated that the Board was going to be reviewing the matter and felt that the case would get the attention needed to make a just decision. Our hopes were dashed, however, when a few weeks later we learned that the Board denied the case.

At that point, we basically became resigned to the fact that we had lost. Our Congressman's office was still making calls on our client's behalf to the USIA, but we had little hope that this would get us anywhere. The only other action we were planning was to take the case to the media to show just how unjust the J-1 home residency requirement can be. Perhaps the USIA would reverse their decision when the light of public scrutiny was applied.

And then we received an incredible surprise. The INS Service Center called us to tell them that they had been instructed to halt processing on the case. The USIA had changed its decision and chosen to recommend approval. And within a few days the waiver approval came in the mail. The exact reason for this second reversal is not yet clear.

The case was quite typical in its beginning. The USIA turns down sympathetic cases every week for "policy reasons" seemingly without regard to the family tragedies that often result from being forced to comply with the home residency requirement. Its ending, however, was quite unusual, but it does prove that persistence can sometimes pay off in J-1 waiver cases.